When the family leave laws were enacted, the issue of how much notice your employees must give before taking a leave seemed relatively simple. But it hasn’t turned out that way. Say, for example, your employee wants to change the dates of her family leave after you already made arrangements based on her earlier notice. Or an employee calls in sick, but won’t tell you what’s wrong or when he can return to work. What do you do? We will examine two new cases involving these thorny questions, and focus on how to handle employee notice problems that can commonly arise under the family leave laws.
Employee Wants To Change Date
In the first case, Francis Hopson, an employee at Quitman County Hospital in Mississippi, had arranged several months in advance for a leave of absence to have elective surgery. The operation was scheduled for mid-May. But Hopson learned in late April that it had to be performed by April 30 in order to be covered by her insurance. The hospital wouldn’t let her reschedule her family leave, but Hopson took the time off anyway and was fired. She then sued Quitman claiming it had violated the federal Family and Medical Leave Act (FMLA).
Our HR Management & Compliance Report: How To Comply with California and Federal Leave Laws, covers everything you need to know to stay in compliance with both state and federal law in one of the trickiest areas of compliance for even the most experienced HR professional. Learn the rules for pregnancy and parental leaves, medical exams and certifications, intermittent leaves, required notices, and more.
Short Notice May Be Justified
The hospital tried to get the case dismissed, arguing that denying the leave and terminating Hopson were reasonable because no one could fill in for her on such short notice.
It also contended there was no medically urgent reason to change the date.
The family leave laws, which apply to employers with 50 or more employees, generally require 30 days’ notice for planned medical treatment. How- ever, the Court of Appeal pointed out that shorter notice may be acceptable if there are changed circumstances or a medical emergency.
The court stressed that the legal requirement as to the length of the notice would depend on two factors: 1) whether it was given as soon as practical; and 2) whether the employee made a reasonable effort to schedule treatment so as not to unnecessarily disrupt the employer’s operations.
Hopson now has to prove to a jury that under her circumstances, the approximately one-week notice she gave was appropriate.
Failure To Give Adequate Notice
In the second new case, a Ford Motor Company employee, Wardell Carter, did not show up at work, but his wife called to say he would be “out” because of family problems. He actually was suffering from stress and depression. Several days later, Carter called Ford to say he was ill but when asked what the problem was, would say only that it was “personal.” He called back after a few days to report he was still sick, but didn’t say when he would return to work. That same day, Carter received a letter from Ford giving him five days to either return to work or provide a reason for his absence.
Almost a week later, Carter’s wife called Ford to say she would soon deliver medical papers explaining why he needed medical leave. Ford told her not to bother because Carter had already been fired.
The court upheld Carter’s termination, explaining that under the FMLA, he had failed to give adequate and timely notice of the need to take leave. The court emphasized that FMLA regulations require an employee to give notice as soon as practical, which is generally about two business days for an unexpected illness.
How To Sidestep Disputes
In the Ford case, the court found in the company’s favor even though the employee and his wife called in several times and were prepared to submit medical information very shortly after Ford’s five-day deadline expired.
It is entirely possible another court faced with similar facts would decide Ford acted too harshly in terminating the worker. It’s important, therefore, to be prepared to handle employee notice issues properly.
Here are some suggestions:
- Be flexible on notice required. Your workers have a duty to give you notice either before or as soon as practical after taking family leave. Thirty days’ notice is required for foreseeable events, but if there are unusual circumstances, shorter notice may be acceptable. Also, under federal law, the notice doesn’t have to be in writing. However, your policy can request-but not require -written notice.
- Find out the reason for leave before you terminate. Federal law puts the burden on you to determine whether an absence qualifies for family leave. And you must designate leave as family leave within two business days of learning that it qualifies. (See CEA June 1996.) So, if an employee asks for unpaid time off or offers vague explanations for not coming to work, you should ask why leave is needed. If you don’t at least try to find out if the leave qualifies under the family leave laws, you could violate the law by terminating an employee who may have been entitled to leave.
- Provide “Family Care Leave” form. In California, where employee privacy protections are more stringent than under federal law, you can’t ask about the specific medical reasons for the leave unless the employee volunteers them first. The best way to get information is to use the special “Family Care Leave Certification of Health Care Provider” form, which can be used to verify the need for leave and its expected length, but doesn’t ask for a diagnosis. (See CEA August 1995 Bulletin.) Give this form to workers promptly after they request a medical leave. Or, if you suspect an employee’s unexplained absence might qualify for family leave, send them the form immediately along with a copy of your family leave policy.
- Set a reasonable deadline. You should set a reasonable deadline for the employee to return the form or give you more information to help you decide whether a legitimate need exists for family leave. If the employee doesn’t reply, consider sending a second request before taking further action.